Tesoriero v. Carnival Corp.
Tesoriero v. Carnival Corp.
2018 WL 1894717 (S.D. Fla. 2018)
March 23, 2018

Williams, Kathleen M.,  United States District Judge

Failure to Preserve
Spoliation
Adverse inference
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Summary
The Magistrate Judge recommended that Defendant's motion for summary judgment be granted and Plaintiff's motion denied. The Court agreed with the Report's conclusion that Plaintiff had failed to produce evidence of actual or constructive notice of the risk-creating condition and that Plaintiff's arguments regarding Carnival's failure to preserve the broken chair did not amount to spoliation. The Court granted Defendant's Motion for Summary Judgment and denied Plaintiff's Motion for Summary Judgment.
Additional Decisions
Irina TESORIERO, Plaintiff,
v.
CARNIVAL CORPORATION d/b/a Carnival Cruise Lines a/k/a Carnival Cruise Line, Defendant
Case No. 16-21769-Civ-WILLIAMS/TORRES
United States District Court, S.D. Florida
Signed March 23, 2018

Counsel

Christopher Bond Smith, John Heyward Hickey, Elizabeth Letitia Bryan, Hickey Law Firm, P.A., Miami, FL, for Plaintiff.
John Michael Magee, Carnival Cruise Lines, Scott P. Mebane, Caroline Leigh Milewski, Mase Tinelli Mebane Briggs, P.A., Miami, FL, for Defendant.
Williams, Kathleen M., United States District Judge

ORDER

*1 THIS MATTER is before the Court on Magistrate Judge Edwin G. Torres's report and recommendation (the “Report”) regarding the Parties' cross motions for summary judgment (DE 38; DE 39). The report recommends that Defendant's motion be granted and Plaintiff's motion denied. Plaintiff filed objections to the report on October 6, 2017 (DE 65) and Defendant filed a reply on October 19, 2017 (DE 66).
The Court has independently reviewed Judge Torres' comprehensive, 62-page Report; the objections and reply to the Report; the briefing filed by the Parties; and the record. For the reasons set out in the Report, the Court agrees that Defendant is entitled to summary judgment. Specifically, the Court agrees that Plaintiff has failed to produce evidence that would create a genuine issue of material fact regarding the absence of actual or constructive notice of the risk-creating condition. Plaintiff maintains that notice is not required in cases where the doctrine of res ipsa loquitur applies, or in cases where Plaintiff has alleged negligent maintenance. But Judge Torres' detailed Report contains a very thorough analysis of these alternative arguments, and concludes that neither of those arguments warrant a denial of Defendant's summary judgment motion, because they are either not legally or are not factually supported on this record. The Court agrees. Finally, the Court notes that the arguments regarding Carnival's failure to preserve the broken chair that are presented in Plaintiff's motion for summary judgment, as discussed in the Report, do not amount to spoliation such that an adverse inference is warranted.
In her objections, Plaintiff contends that the Report misapplied the res ipsa standard under Maritime Law, that it erroneously rejected Plaintiff's negligent maintenance arguments, that it reached an erroneous conclusion regarding whether the cruise ship had constructive notice of the dangerous condition and on the issue of spoliation, and that it misapplied the summary judgment standard. The Court has considered Plaintiffs arguments with regard to each of these claims—which reiterate a number of the arguments made in their initial briefs—and finds them unavailing.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The conclusions in the Report (DE 62) are AFFIRMED AND ADOPTED as set out above.
2. Defendant's Motion for Summary Judgment (DE 38) is GRANTED. Plaintiff's Motion for Summary Judgment (DE 39) is DENIED.
3. All remaining motions are DENIED AS MOOT.
DONE AND ORDERED in Chambers in Miami, Florida, this 23rd day of March, 2018.